Taylor v. District of Columbia Bd. of Zoning Adjust, 6954.

• Decision Date: 20 July 1973
• Docket Number: No. 6954.,6954.
• Citation: 308 A.2d 230
• Parties: W. Waverly TAYLOR, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.
• Court: D.C. Court of Appeals

Page 230

308 A.2d 230

W. Waverly TAYLOR, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.

No. 6954.

District of Columbia Court of Appeals.

Argued May 1, 1973.

Decided July 20, 1973.

Norman M. Glasgow, Washington, D. C., with whom Whayne S. Quin and John F. McCabe, Jr., Washington, D. C., were on the brief, for petitioner.

Leo N. Gorman, Asst. Corp. Counsel, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for respondent.

Before FICKLING, KERN and GALLAGHER, Associate Judges.

FICKLING, Associate Judge.

Petitioner seeks review of an order of the District of Columbia Board of Zoning Adjustment (hereinafter the Board) denying him a variance which would have had the effect of rezoning his property R-3 (row dwellings with minimum lot dimensions of 20 feet in width and 2,000 total square feet). He requested a variance to construct 27 row houses in an R-1-B district (detached single-family homes with minimum lot dimensions of 50 feet in width and 5,000 total square feet.)

Petitioner contends that the Board erred in characterizing his requested variance as a use variance rather than an area variance and, consequently, that it placed a greater burden on him than is required by law. Additionally, he argues that the evidence before the Board was sufficient to meet the even higher burden which was imposed. We disagree with both of petitioner's contentions and affirm.

In the interest of clarity, two diagrams are set out infra at 232 and will be referred to throughout the opinion.

The subject matter of this petition consists of Lot 825 and parts of Lots 818 and 819, all located in Square 1368. This property fronts on the 4600 block of MacArthur Boulevard, N.W., Washington, D.C. [Diagram I]. Petitioner also owns the property directly to the rear of the subject property and, for a number of years, has been developing this area as the Dumbarton Subdivision [Diagram I]. All of the subdivision is located in an R-1-B district [Diagram II]. Recently, petitioner acquired Lot 825 from the Corps of Engineers in order to facilitate the orderly development of the Dumbarton Subdivision. Petitioner in his subdivision plans details R-1-B conforming lots on the southwest side of Charleston Terrace [Diagram I], however, in so doing he has created a rather elongated sliver of property on MacArthur Boulevard [Diagram I]. Not only is this property shallow (in places, as narrow as 85 feet), but also its topography is rather extreme. There is an increase of approximately 25 feet in elevation from the front edge (MacArthur Boulevard) of the property to the rear. There is an additional problem of a drainage easement which bisects the property [Diagram I]. Also, petitioner asserts that R-1-B development is hindered by the close proximity of a small C-1 district (neighborhood shopping) and an R-5-A district (general residence) [Diagram II].

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In consideration of the problems set out above, petitioner determined that he could not economically develop this property with detached single-family homes. He therefore applied to the Board for a variance to construct 27 row houses, essentially in compliance with R-3 district requirements¹ After a hearing² his request was denied. The Board was of the opinion that "appellant has not proved a hardship within the meaning of the variance clause of the Zoning Regulations and that a denial of the requested relief will not result in peculiar and exceptional practical difficulties and undue hardship upon the owner."

I

Petitioner's first contention is that the Board erred in characterizing his requested variance as a use rather than an area variance and, consequently, erred in requiring him to meet a heavier burden of proof than is required by law. Petitioner's initial difficulty in making this contention is the following exchange which took place at the beginning of the hearing.

CHAIRMAN SCRIVENER: It is a use variance?

MR. GLASGOW [Attorney for Petitioner]: It is a use variance and a variance as to the height and the yard and court requirements.

In other words, petitioner characterized his requested variance as a use variance and additionally attempted to meet the use-variance burden of proof. With this exchange in the record, we would have great difficulty in finding that the Board erred in applying the precise standard petitioner requested. However, for reasons set out infra we need not rest our decision on such a narrow ground.

It is clear from this record that the Board interprets the regulations which were adopted by the Zoning Commission to differentiate on the basis of use among detached, semi-detached, and row dwellings, as well as between single-family and multiple-family dwellings. See Zoning Regulations, Art. 31, § 3101 et seq. Therefore, our only task is to determine whether the Board's interpretation is plainly erroneous or inconsistent with the regulations. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). In making that determination we must examine the statutory authority of the Board to grant variances, because it is that statute (as interpreted by this court) that requires the imposition of varying burdens of proof.

The statute involved, D.C.Code 1967, § 5-420(3), reads in pertinent part:

Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the original adoption of the regulations or by reason of exceptional topographical conditions or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of any regulation adopted under sections 5-413 to 5-428 would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship, provided such relief can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan as embodied in the zoning regulations and map. [Emphasis added.]

In Palmer v. BZA, D.C.App., 287 A.2d 535 (1972), the court read the emphasized language in the disjunctive and required the more stringent standard (exceptional and undue hardship) with respect to the more drastic relief inherent in a use variance. Id. at 541. The court, however, did not have to elaborate on the distinction between use and area variances in that case because it determined that the intervenor had failed to meet either standard. The court did note that there could be hybrid variances as well as pure use or area variances. Id.

The decision to read the statute in the disjunctive was predicated on the court's view that, in general, area variances involve minor alterations to the character of the zoned district while use variances tend to drastically change the district's nature. While the rationale of courts in other jurisdictions is not always expressed, it is clear that the more drastic the requested variance, the greater the burden of proof that is required. Palmer v. BZA, supra, at 540-542; 2 A. Anderson, American Law of Zoning §§ 14.06, 14.07 (1968) (hereinafter Anderson); 3 Anderson §§ 14.45, 14.68; A. Rathkopf, The Law of Zoning and Planning Ch. 45 (3d ed. 1962). We now turn to an examination of the facts of the requested variance to determine if the Board's imposition of the heavier burden was plainly erroneous.

Petitioner stresses the fact that he wishes to build single-family dwellings in a district zoned for single-family dwellings. He argues that all he is requesting is a variance from the height, side yard, court, and lot occupancy regulations. However, his own testimony indicates that if he builds in compliance with the Zoning Regulations, he can only construct 10 fully detached single-family dwellings with building lots of over 6,700 square feet. Further, because of the housing market, each home will have to sell for a figure substantially in excess of $100,000. His requested variance would allow the construction of 27 row houses on lots of just over 2,000 square feet. This would allow petitioner to almost triple the family density. Additionally, the row houses would not be in character with the other properties in the zoned district, which are fully detached.

We are of the opinion that while the requested variance may not be a use variance in its "purest form," it is a hybrid variance which would drastically alter the character of the zoned district. Therefore, applying the rationale of Palmer to the instant case, we feel that the Board correctly applied the undue hardship burden to petitioner's requested variance, which might well be described as a use-area variance. See 3 Anderson § 14.45 and compare Wilcox v. Zoning Board of Appeals, 17 N.Y.2d 249, 270 N.Y.S.2d 569, 217 N.E.2d 633 (1966). On this record we cannot say that the Board's interpretation of its own regulations was either plainly erroneous or inconsistent with those regulations.

II

Our decision that the Board applied the correct standard does not, however, conclude our consideration of this cause. Petitioner further contends that the uncontradicted evidence he submitted to the Board requires that the variance be granted, even assuming (as we have now decided) that the higher burden is applicable.

It is fundamental that the property owner who appeals to the Board for a variance from the strict application of the Zoning Regulations has the burden of demonstrating that he qualifies for the requested relief. Annot., 168 A.L.R. 13, 113 (1947); 8 E. McQuillin, Municipal Corporations § 25.167 (3d ed. 1965); 101 C.J.S. Zoning § 306 (1958). And proof that the circumstances which create the hardship uniquely affect the...